Preponderance of the Evidence Versus in Time Conviction: A Behavioral Perspective on a Conflict between American and Continental European Law
33 Pages Posted: 8 May 2009
Date Written: May 8, 2009
Abstract
Continental law is irrational. American law is irresponsible. These beliefs are the essence of one of the few true conflicts between American common law and Continental Civil Law. At the surface, the conflict is confined to an apparently technical issue in the law of evidence. On the European continent, for the court to hold against the defendant, the judge must be convinced that the facts brought forward by the plaintiff in support of the claim are indeed true. In principle, Continental law does not differentiate between civil law and criminal law. The standard of proof is in time conviction throughout. By contrast, American law has three different standards of proof. In criminal law, the charge must be established “beyond a reasonable doubt.” In civil law, the plaintiff prevails only if “the preponderance of the evidence” is in the plaintiff’s favor. Only in a limited number of civil law matters, of particular gravity for the defendant, must the intermediate standard of “clear and convincing evidence” be met.
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